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Mobile Devices at Work: The Good, the Bad, and the Ugly

Mobile Devices at Work: The Good, the Bad, and the Ugly

By Carol Rovello, SPHR & Cady Barrett

Technology has fundamentally altered the modern workplace in more ways than you may think. For years, employers have been issuing mobile devices to employees who are exempt as well as non-exempt. These mobile devices can include laptops, pagers, cell phones, and personal digital assistants (PDAs). The flexibility that these mobile devices provide has benefited today’s employers in many ways. As the use of these electronic devices becomes more fully integrated within employee responsibilities, however, a "perpetual workplace" has developed, which can create unexpected liability for employers.

More and more non-exempt employees are able to constantly check their company issued phone and company email outside of normal working hours to reply to work e-mails, handle work calls, and perform work remotely after hours. This additional after-hours, remote work creates additional “work time” that may not be compensated by the employer. Further, these extra hours may push non-exempt employees over 40 hours in a workweek.

As you know, exempt employees are not subject to the overtime provisions of the federal and state wage and hour laws. These employees can use their smart phones and other mobile devices anytime without the employer worrying about overtime pay. The Fair Labor Standards Act (FLSA), however, requires employers to pay non-exempt employees at least one and one-half times their regular rate of pay for "all hours worked" over 40 within any give workweek. Additionally, some states have different requirements that are more favorable toward employees.

The after-hour email checks, phone calls, and remote work that more and more non-exempt employees are performing can increase their work time. For the FLSA, "hours worked" are all hours spent by the employee participating in tasks related to work that benefit the employer as long as the employer is aware or should have been aware of this work. The standard language is that the employer “suffers or permits” the employee’s work. This includes time that the employee is “allowed” as well as required to work, regardless of the work location.

It is your duty to exercise control and see that work is not performed if you do not want it to be performed. As an employer, you cannot sit back and accept the benefits of an employee’s work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. You have the power to enforce the rule and must make every effort to do so. Since these mobile devices create a record of their use, you can identify which employees are working after hours and take corrective action. Keep in mind that you still have to pay for the hours worked, including overtime obligations, even if you did not approve of this time. So, pay and then deal with it as a disciplinary issue, if necessary.

Five minutes here or there checking and replying to an email and/or performing other remote work doesn’t sound like much, but this time can really add up and the potential financial impact of a claim can be devastating. And all of us know what it’s like to check something on our email and suddenly realize that an hour has gone by. Since these mobile devices produce records of their use, the employee also has verification that this work was performed. If the violation is found to be willful, the individual making the claim is entitled to back pay for up to three years or as far back as the violation occurred, whichever is shorter. Liquidated damages equal to the back pay and attorney's fees may be awarded.

Other suggestions to manage this important human resource issue include the following:

Clearly define responsibilities.

Ensure non-exempt employees know when to power down. “When supervisors decide to give non-exempt employees [PDAs] and remote access, they need to have a clear policy in place that these workers are not expected to check e-mail or return phone calls outside of normal business hours unless they have advance authorization,” and adding that even if hourly employees violate that directive, the laws require that they still be compensated for their time spent working (although they can be reprimanded).

Create timekeeping mechanisms that require employees to track, submit, and verify the accuracy of their hours, including remote hours, daily.

Make clear what you will and will not pay for in regard to remote-office technology and equipment, Internet, and phone connectivity.

Keep track of all employees working remotely and their remote devices, consistent with legal requirements, so that if litigation should arise, the company knows what external sources exist.